Abdul Rehaman vs Ganesh R. Naik and Others

N.K. Patil, J.—This appeal is filed by the claimant against the impugned judgment and award dated 30.04.2014 passed in MVC No. 281/2012 on the file of the Additional District & Sessions Judge and MACT, Udupi, Sitting at Kundapura., (hereinafter referred to as ''Tribunal'' for brevity) awarding compensation of Rs. 2,59,000/- with interest at 6% p.a. from the date of petition till the date of realisation, on account of the injuries suffered in a road traffic accident.

The brief facts of the case are:

"The appellant was aged about 55 years, working as a Ring Well Worker and also a mason earning Rs. 15,000/- per month. He was a skilled labourer and also expertised in his profession. He was hale and healthy prior to the accident. He met with an accident on 16.1.2012 at 13.00 Hours due to rash and negligent driving of Maruthi Omni Car bearing No. KA-20-B/720 by its driver which came in a high speed and dashed against the appellant. Due to the impact, he fell down and sustained grievous injuries to the head, fracture of temporal bone, C6 and C7 vertebra and other injuries all over the body, on account of which, he has undergone treatment for about 10 days and suffered mental pain and agony. On account of the injuries sustained in the accident, he has spent huge amount towards medical expenses, conveyance, nourishing food and attendant charges, follow up treatment etc. He was advised bed rest for six months. There is a permanent disability and the claimant is required to spend amount towards future medical and incidental expenses. Taking all these factors into consideration, the appellant was constrained to file a claim petition under Section 166 of the M.V. Act before the Tribunal seeking compensation in a sum of Rs. 22,70,000/- against the respondents. The Tribunal after assessing the oral and documentary evidence and other relevant material available on the file allowed the claim petition in part awarding compensation of Rs. 2,59,000/- with interest at 6% p.a. from the date of claim petition till the date of realisation. Not being satisfied with the quantum of compensation and the rate of interest awarded by the Tribunal, the appellant has presented the instant appeal seeking enhancement contending that the compensation awarded by the Tribunal is inadequate."

We have heard Sri Pavana Chandra Shetty H., learned Counsel appearing for the appellant and Sri B. Pradeep, learned Counsel appearing for respondent No. 2 - Insurance Company, for considerable length of time.

Learned Counsel for the appellant submits that the Tribunal has erred in not accepting the evidence of the doctor who has assessed the disability at 36% towards whole body. The appellant has undergone two surgeries and he being a Ring Well Worker is not in a position to work as he was working prior to the accident. He requires further surgery and medication. As per the opinion of the doctor, he requires more than Rs. 1,00,000/- towards medical expenses including incidental expenses. Learned counsel further submits that the income taken by the Tribunal at Rs. 5,000/- per month is on the lower side. He being a skilled worker, the income ought to have been taken between Rs. 6,000/- and - Rs. 6,500/- per month and awarded reasonable compensation. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified accordingly.

Per contra, learned Counsel for the insurance company inter alia submitted that the impugned judgment and award passed by the tribunal is after appreciating the oral and documentary evidence on record. The doctor in his evidence has no where stated that there is 100% functional disability. Therefore, the Tribunal has considered the permanent disability at 18% towards whole body and awarded reasonable compensation under all heads and therefore, interference by this Court is uncalled for.

After critical evaluation of the oral and documentary evidence available on record and considering the submissions made by the learned Counsel for both parties and after perusal of the impugned judgment and award, the only point that arises for our consideration is:

"Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"

After careful perusal of the impugned judgment and award passed by the Tribunal, what emerges is, the occurrence of the accident and the injuries sustained by the appellant are not in dispute. It is also not disputed that the appellant was working as a Ring Well Worker and hale and healthy prior to the accident. The tribunal after critical evaluation of oral and documentary evidence has rightly awarded Rs. 1,20,000/- towards pain and sufferings, Rs. 34,979/- towards medical expenses and Rs. 25,000/- towards future medical expenses and interference by this Court is not called for.

However, the Tribunal has erred in not awarding reasonable amount towards loss of income during the period of treatment, pain and sufferings, loss of amenities, discomfit unhappiness and loss of future income on account of permanent disability sustained. It is the case of the appellant that he was an in-patient for ten days in the hospital on account of the grievous injuries sustained in the road traffic accident.. PW.2 - the doctor who examined the appellant after clinical and radiological examination has assessed the disability at 36% towards whole body. We accept the assessment of disability made at 36% instead of 20% taken by the Tribunal. Having regard to the age and avocation of the appellant, we reassess the income at Rs. 6,500/- per month as against Rs. 5,000/- assessed by the Tribunal. The appellant has sustained permanent disability on account of injuries to head and fracture of C6 and C7 vertebra and other injuries all over the body. Having regard to the injuries suffered, he may not be in a position to work effectively. He has undergone surgery and he must have taken bed rest and follow up treatment for a period at least six months as per the advice of the doctor. Accordingly, we deem it fit to award Rs. 39,000/- (Rs. 6,500/- x 6) towards loss of income during laid up period, Rs. 60,000/- towards loss of amenities, discomforts and unhappiness as against Rs. 10,000/- and Rs. 3,08,880/- (Rs. 6,500/- x 12 x 36 x 11/100) as against Rs. 1,18,800/-. The break up is as follows:

Having regard to the facts and circumstances of the case as stated above, the appeal filed by the claimant is allowed in part. The impugned judgment and award dated 30.04.2014 passed by the tribunal in MVC No. 281/2012 is hereby modified. The total compensation payable comes to Rs. 6,07,859/- as against Rs. 2,59,000/- awarded by the Tribunal. The enhanced compensation comes to Rs. 3,48,859/- which carries interest at 9% p.a. from the date of petition till its realization as the accident is of the year 2012.

The second respondent-insurer is directed to deposit enhanced compensation with interest at 9% p.a. within three weeks from the date of receipt of a copy of this judgment.

Out of enhanced compensation of Rs. 3,48,859/-, Rs. 2,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank, in the name of the appellant, for a period of 10 years and renewable for 5 years, with liberty to withdraw the interest periodically.

The remaining amount of Rs. 1,48,859/- with proportionate interest shall be released in favour of the appellant, immediately after deposit by the Insurer.

Office to draw the award accordingly.